Warning

Positive duty

The Equal Opportunity Act 2010 makes it easier for people to understand their rights and responsibilities.

One aspect of the new law is that it clearly sets out the positive duty to eliminate discrimination, sexual harassment and victimisation.

It is important people in your organisation know about the positive duty and understand how it works. Complying with the positive duty will help you stop discrimination before it happens and will take us a step closer to creating equal opportunity for everyone in Victoria.

Who does the positive duty apply to?

The positive duty applies to everyone who already has responsibilities under the Equal Opportunity Act. It applies to employers and people who provide accommodation, education, and goods and services. It also applies to clubs and sporting organisations, to government, and to people in business and the community sector.

What is the positive duty?

The Equal Opportunity Act 2010 introduces a positive duty requiring all organisations covered by the law – including government, business, employers and service providers – to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation.

Instead of allowing organisations to react to complaints of discrimination when they happen, the Act requires them to be proactive about discrimination and take steps to prevent discriminatory practices. For example, by making sure your premises and services are accessible to people with a range of disabilities.

This positive duty is about addressing the systemic causes of discrimination, sexual harassment and victimisation. Just like occupational health and safety laws require employers to take appropriate steps to improve their systems, policies and practices so injuries don’t occur, the Equal Opportunity Act 2010 gives organisations an obligation to take appropriate steps to prevent discrimination, sexual harassment and victimisation from occurring.

The positive duty in the Equal Opportunity Act 2010 spells out a principle that was always behind the aims of our equal opportunity laws.

Why have a positive duty?

The positive duty is aimed at making sure organisations prevent discrimination happening in the first place, rather than responding after a complaint has been made.

Addressing the positive duty makes good business sense. An organisation that provides services in a way that proactively identifies and addresses the potential for discriminatory practices can find it is more efficient and attractive as an employer and service provider.

For government bodies, taking steps to eliminate discrimination can make sure that they provide inclusive, efficient and effective services, and open up people’s opportunities.

What are ‘reasonable and proportionate measures’?

The law clearly indicates that the reasonable and proportionate measures needed to satisfy the positive duty will depend on the size and resources of each organisation.

Factors that must be considered include:

the size of the business or operations

the resources of the business

the nature of the business

the business and operational priorities

the practicability and cost of the measures in question.

Complying with the positive duty might mean having policies aimed at preventing discrimination and harassment, and making sure all staff are aware of their obligations.

It might also include having a good complaint-handling or grievance procedure, and a process for reviewing and improving compliance.

What is the Commission’s role?

The positive duty encourages organisations to work with the Victorian Equal Opportunity and Human Rights Commission (the Commission) before any complaints are made.

An individual cannot pursue a complaint against an organisation for not meeting its positive duty. However, if the Commission becomes aware of a serious issue that relates to a group of people, we may decide to investigate the matter further.

You can contact the Commission for more information about the positive duty or to discuss any aspects of your organisation’s equal opportunity plans.

The Commission will keep developing education materials and tools to help people and organisations understand and comply with the Act.

Register to receive eupdates and monthly ebulletins, with information about new publications and training events, or contact us.

Tips when considering your positive duty

Scan:

Understand the law.

Gather relevant information.

Look around your organisation and think about who you interact with and what you do. Who do your activities affect? Where can you see potential problems?

Plan:

Analyse information and identify key issues and priorities.

Set out your plan of action. Take an approach that is relevant to your size, resources and functions. Develop new policies and change practices where needed. Outline the objectives you think you should achieve to prevent discrimination, sexual harassment and victimisation.

Act:

Implement your plan and train your staff.

Review:

Monitor what happens and revisit your approach where necessary. For larger organisations this should be part of the normal business planning cycle.

Examples of positive duty

The positive duty in practice: Nordom*

Ben is the manager of Nordom, a financial institution employing 80 people. To prepare for the Equal Opportunity Act 2010, he reviews customer satisfaction surveys and complaints, and audits Nordom’s training materials, policies and practices.

Nordom has never received a discrimination complaint but customer feedback shows that people with disability have trouble accessing Nordom’s services. People with wheelchairs cannot reach the information brochures in the foyer and the font used in promotional materials is too small for people with vision impairments.

In addition, despite receiving numerous loan applications by recently-settled migrants, few are approved because staff find it difficult to interact with people who speak little English.

Nordom updates its policies, introduces training for all staff on equal opportunity, disability and cross-cultural awareness, and adjusts its publications so that information on its services is more accessible.

These measures are likely to constitute reasonable and proportionate measures under the positive duty.

The positive duty in practice: Accent*

Isobel is a human resource manager at Accent, a marketing company that employs 250 people.

In preparation for the Equal Opportunity Act 2010, and as part of Accent’s strategic plan, she conducts a confidential staff satisfaction survey, looks at records of exit interviews, and reviews Accent’s policies and practices to help identify and prevent discrimination, harassment and victimisation.

The process reveals a high turnover of women at Accent because many are denied flexible working arrangements, are paid less than their male colleagues and are uncomfortable with the level of sexual banter in the office.

Isobel also discovers that when employees raise these grievances they are not treated seriously or confidentially. Although Accent has policies on discrimination, harassment and grievance procedures, they are out of date and most staff aren’t aware of them.

She informs management who agree to review policies and procedures and provide training for all staff on their rights and responsibilities. Accent also introduces a flexible workplace policy to encourage and support staff to achieve a balance between work and their other responsibilities. In addition, it plans to audit pay systems for sex bias, mentor female staff and revise its performance appraisal standards to achieve greater equality between male and female staff.

These measures are likely to constitute reasonable and proportionate measures under the positive duty.